Tuesday, June 30, 2015

Practice point: The court is authorized to impose attorneys' fees and expenses upon a
party for frivolous conduct that "asserts material factual statements
that are false," pursuant to 22 NYCRR 130-1.1 [c][3].

Student note: Rule 130-1.1 does not require a full evidentiary hearing, but states
that attorney's fees and costs may be awarded "after a reasonable
opportunity to be heard," and that "[t]he form of the hearing shall
depend upon the nature of the conduct and the circumstances of the case," pursuant to 22 NYCRR 130-1.1[d].

Monday, June 29, 2015

Practice point: The Appellate Division reversed the granting of defendant's motion for summary judgment on this disability discrimination claim. The Appellate Division noted that an employer has a duty to move forward to consider accommodation
once the need for accommodation is known or requested, pursuant to NYCRR
466.11[j][4], and, viewing the evidence in the light most favorable to the
nonmovant, and found that plaintiff's responses to the notice of proposed
termination could reasonably have been understood as a request for
accommodation, which the Department of Correctional Services rejected by terminating plaintiff's
employment based on her inability to return to work within the one year
permitted under Civil Service Law § 71.

The Appellate Division concluded that defendants failed to establish, prima
facie, that they engaged in a good faith interactive process that
assessed plaintiff's needs and the reasonableness of her
requested accommodation.

Student note: An employer normally cannot obtain summary judgment on a disability
discrimination claim pursuant to Executive Law § 296 unless the record
demonstrates that there is no triable issue of fact as to whether the
employer duly considered the requested accommodation. The employer
cannot present such a record if the employer has not engaged in
interactions with the employee revealing at least some deliberation upon
the viability of the employee's request.

Friday, June 26, 2015

Practice point: The Appellate Division affirmed the denial of plaintiff's summary judgment motion on liability in this action where plaintiff seeks damages for injuries sustained in an auto accident.Defendant testified that he stopped at an intersection, looked to the direction of oncoming traffic, and observed that
plaintiff's vehicle was at a corner one block away. Defendant further
testified that he began to move his vehicle because he believed that he
had time to cross over the intersection, as plaintiff's vehicle was "at
the other corner." He also testified that he blew his horn five seconds
before the vehicles collided, and that the impact occurred between the
front bumper of his vehicle and the front driver's side of plaintiff's
vehicle.

There are issues of fact as to which driver entered
the intersection first, which driver had the right-of-way, and whether
plaintiff could have exercised reasonable care to avoid the collision.

Student note: The fact that defendant's approach in the intersection was
regulated by a stop sign and no traffic control devices regulated
plaintiff's approach is not a basis for awarding plaintiff summary
judgment. In addition, even if plaintiff had the right-of-way,
she was still obliged to be vigilant for oncoming traffic.

Thursday, June 25, 2015

Practice point: A municipality may not be held liable to a person injured by the breach of a duty owed to the general public, such as a duty to provide police protection, fire protection or ambulance services. When a negligence cause of action is asserted against a municipality, and the municipality's conduct is proprietary in nature, the municipality is subject to suit under the ordinary rules of negligence applicable to nongovernmental parties. However, if it is determined that a municipality was exercising a governmental function, the municipality may not be held liable unless it owed a special duty to the injured party.

A special duty is a duty to exercise reasonable care toward the plaintiff, and follows from a special relationship between the plaintiff and the governmental entity. To establish a special relationship against a municipality which was exercising a governmental function, a plaintiff must show: (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking.

Student note: A municipality's emergency response system is a textbook example of a governmental, rather than proprietary, function.

Wednesday, June 24, 2015

Practice point: Defendant established its prima facie entitlement to judgment as a matter of law in this action where plaintiff allegedly sustained injuries when he tripped over a cord while working in a kitchen facility operated by his employer, which is a nonparty. The premises in which the kitchen was located were leased from defendant pursuant to a lease which had been entered into between the prior owner of the premises and plaintiff's employer.

Defendant submitted a copy of the lease that governed the rental of the premises to plaintiff's employer. It also submitted an affidavit and the deposition testimony of its property manager. The Appellate Division determined that, taken together, the evidence demonstrated that defendant was an out-of-possession landlord that did not retain control over the premises and was not obligated under the terms of the lease to perform repairs or maintenance.

In opposition, the plaintiff failed to raise a triable issue of fact. While defendant retained a right to reenter the premises, plaintiff failed to allege in his complaint or bill of particulars that defendant violated any specific statutory provision, or to raise a triable issue of fact as to any such violation. He also failed to raise a triable issue of fact as to whether the defendant assumed a duty to repair the premises by virtue of a course of conduct.

Student note: An out-of-possession landlord is not liable for injuries that occur on its premises unless the landlord has retained control over the premises and has a duty to maintain or repair the premises imposed by statute or assumed by contract or a course of conduct.

Tuesday, June 23, 2015

Practice point: The Appellate Division affirmed the denial of defendant's motion for summary judgment in this action where plaintiff alleges that the drop-down ladder on defendants' fire escape malfunctioned as he was descending to the street, causing his foot to be trapped and injuring him. Defendants failed to make a prima facie showing of the absence of any defect in the fire escape, or that they lacked constructive notice of the alleged defect. Their manager and superintendent testified that they did not service or test the fire escape prior to plaintiff's accident, and defendants did not produce any inspection reports.

In addition, defendants' contention that plaintiff's use of the fire escape to exit an apartment in a nonemergency situation was unforeseeable and unreasonable presents issues of fact for the jury.

Student note: As defendants made no showing of inspections of the fire
escape before the accident, they failed to show lack of constructive
notice as a matter of law, requiring denial of their motion regardless
of the sufficiency of plaintiff's opposing papers.

Monday, June 22, 2015

Practice point: Labor Law § 240(1) provides, in pertinent part, that "[a]ll contractors and owners and their agents . . . shall furnish or erect, or cause to be furnished or erected . . . scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to [construction workers employed on the premises]."

This so-called scaffold law protects workers by placing ultimate responsibility for safety practices at building construction jobs on the owner and general contractor.

Here, the Appellate Division determined that plaintiff established prima facie entitlement to judgment as a matter of law on the issue of liability on the cause of action alleging a statutory violation. He submitted evidence demonstrating that, while in the course of his employment as a carpenter on property owned by the State, he was standing on an unsecured A-frame ladder when the ladder tipped over, causing him to fall.

In opposition, the State failed to raise a triable issue of fact, as it only relied upon inadmissible hearsay in support of its contention that plaintiff's conduct was the sole proximate cause of the accident.

Student note: As property owner, the State may be liable for the accident even though it did not exercise control or supervision of the work. To hold the owner liable, a plaintiff must prove that there was a statutory violation and that it was the proximate cause of the injuries sustained.

Friday, June 19, 2015

Practice point: The Appellate Division affirmed the denial of defendant's motion to dismiss this action for personal injuries sustained when plaintiff tripped over an extension cord.

The Appellate Division found in the record presents triable issues of fact as to whether defendants created the condition that caused plaintiff's fall. A premises' security manager testified that, after viewing video footage from two days before the accident, he observed defendants' employees working at the location the weekend before the accident. In addition, there are issues of fact as to whether defendants had constructive notice of the extension cord that was on the floor prior to the accident. Defendants never established when their employees last inspected the location prior to the accident, even though their witnesses testified that defendants inspected the area.

Student note: The fact that the extension cord was bright yellow, the floor was white, and the cord was seen by two nonparty witnesses prior to the accident does not establish that the condition was open and obvious. Plaintiff testified that the accident did not happen until after he passed the portable air conditioning unit, and that the air conditioning unit obscured a view of the extension cord.

Thursday, June 18, 2015

Practice point: Vehicle and Traffic Law § 388 creates a strong presumption that the driver of a vehicle is operating it with the owner's consent, which can only be rebutted by substantial evidence demonstrating that the vehicle was not operated with the owner's express or implied permission. The owner's uncontradicted testimony that the vehicle was operated without permission, does not, by itself, overcome the presumption of permissive use. The question of consent is ordinarily one for the jury.

Student note: Motion for leave to amend should be granted in the absence of a showing that the proposed amendment would prejudice or surprise the defendants, and the proposed amendment was not palpably insufficient or patently devoid of merit, CPLR 3025[b].

Tuesday, June 16, 2015

Practice point: The Appellate Division determined that the Supreme Court providently exercised its discretion in
granting the defendants' motion pursuant to CPLR 1021 to dismiss the
complaint, and denying that branch of the
administrator's cross motion which was, in effect, a CPLR 1015 motion
for leave to substitute himself as a party plaintiff and to amend the
caption accordingly.

The Appellate Division noted that the administrator's failure to effect the required substitution until more than 6 ½ years after the decedent's death and nearly 5 ½ years after he was appointed administrator evinced a lack of diligence in prosecuting this action, which had been pending for nearly 8 years at the time the administrator sought substitution. The administrator failed to demonstrate a reasonable excuse for the delay in seeking substitution, which he did only after the defendants moved to dismiss the complaint. In addition, the administrator failed to demonstrate a potentially meritorious cause of action through the submission of admissible evidence, and did not rebut the defendants' allegations of prejudice.

Student note: CPLR 1021 provides, in pertinent part, that if the event requiring the
substitution of a party "occurs before final judgment and substitution
is not made within a reasonable time, the action may be dismissed as to
the party for whom substitution should have been made, however, such
dismissal shall not be on the merits unless the court shall so
indicate."

Determining whether the motion is made within a reasonable time requires consideration of several
factors, including the diligence of the party seeking substitution, the
prejudice to the other parties, and whether the party to be substituted
has shown that the action or the defense has potential merit.

Monday, June 15, 2015

Practice point: The Appellate Division affirmed dismissal of the complaint claiming personal injuries sustained when plaintiff allegedly slipped on a marble step tread as he descended the stairs in defendants' building. The Appellate Division noted that plaintiff denied that any debris on the step caused his fall, and the photographs did not reveal any major defects.

Student note: As a matter of law, the worn marble edge of the step on which plaintiff allegedly slipped is not an actionable defect.

Friday, June 12, 2015

Practice point: The Appellate Division affirmed the denial of the motion and the order directing plaintiff to accept the answer. The Appellate Division noted that while defendant's excuse for not timely answering -- confusion and inadvertence -- was not particularly compelling, it was sufficient. In addition, the delay was relatively short, plaintiff suffered no prejudice, there is no evidence of willfulness, and there is a strong public policy in favor of resolving cases on the merits.

Student note: As no default judgment had been entered, defendant was not required to demonstrate a meritorious defense, pursuant to CPLR 3012[d].

Thursday, June 11, 2015

Practice point: To prevail on a motion for summary judgment in a discriminatory
employment action, a defendant must demonstrate either the plaintiff's
failure to establish every element of intentional discrimination, or,
having offered legitimate, nondiscriminatory reasons for their
challenged actions, the absence of a material issue of fact as to
whether their explanations were pretextual.

Student note:A plaintiff alleging discrimination in employment has the initial burden to establish a prima facie case of discrimination. To meet this burden, the plaintiff must show that (1) he or she
is a member of a protected class; (2) he or she was qualified to hold
the position; (3) he or she was terminated from employment or suffered
another adverse employment action; and (4) the discharge or other
adverse action occurred under circumstances giving rise to an inference
of discrimination.

The burden then shifts to the
employer to rebut the presumption of discrimination by clearly setting
forth, through the introduction of admissible evidence, legitimate,
independent, and nondiscriminatory reasons to support its employment
decision. To succeed on
the claim, the plaintiff must prove that the legitimate reasons
proffered by the defendant were merely a pretext for discrimination by
demonstrating both that the stated reasons were false and that
discrimination was the real reason.

Wednesday, June 10, 2015

Practice point: In this medical malpratice action, the claims relate to treatment rendered at a hospital located in Nassau County. Many of the individual defendants reside in
Nassau County, and all of the individual defendants worked in Nassau County
at the time of the alleged malpractice and lack of informed consent. The
plaintiffs themselves resided in Nassau County at the time each action
was commenced.

The Appellate Division determined that, under these circumstances, the Supreme Court providently
exercised its discretion in granting those branches of the cross motions
which were to place the venue of the consolidated action in Nassau
County and denying that branch of the plaintiffs' motion which was to
place venue in Queens County.

Student note: When a trial court orders consolidation or joint trials under CPLR 602(a), venue should generally be placed in the county where jurisdiction was invoked in the first action. However, the court, in its discretion, may place venue elsewhere.

Tuesday, June 9, 2015

Practice point: The Appellate Division found no basis for setting the jury verdict and affirmed the judgment in favor of defendant Transit Authority. The jury's verdict, finding that defendant was not negligent, is
supported by a fair interpretation of the evidence, given the evidence that, among
other things, none of the other passengers fell

In addition, defense counsel's statements during summation as to why the bus driver may have stopped as it did were fair comments on the evidence. Plaintiff's arguments regarding the prejudicial effect of the bus driver's absence at trial are unavailing. The court instructed the jury that it could accept or reject defendant's explanation for the driver's absence, and permitted the jurors to draw a negative inference from the absence. Defendant did not improperly use the driver's absence as both a sword and a shield.

Student note: Even if it were error to charge the emergency doctrine as
part of negligence, plaintiff failed to adequately preserve its
objection.

Monday, June 8, 2015

Practice point: On the motion, the defendant physician must make a prima facie showing that there was no departure from good and accepted medical practice, or that the plaintiff was not injured thereby. If defendant has made such a showing, the burden shifts to plaintiff to submit evidentiary facts or materials to rebut defendant's showing, but only as to those elements on which defendant met the prima facie burden.

Student note: The essential elements of a cause of action to recover damages for
medical malpractice are a deviation or departure from accepted medical
practice, and evidence that such departure was a proximate cause of
injury.

Friday, June 5, 2015

Practice point: Service of a notice of claim within 90 days after accrual of the claim is a condition precedent to the commencement of a tort action against a public corporation or any employee thereof, pursuant to Education Law § 3813[2] and General Municipal Law §§ 50-e[1][a]; 50-i[1][a].

Thursday, June 4, 2015

Practice point: The Appellate Division affirmed the motion court's denial of petitioner's
request, made under the CPLR 306-b interest of justice standard, for an extension of time to personally serve the petition and amended
petition. Petitioner did not seek an
extension of time until after the expiration of the four-month statute
of limitations, pursuant to CPLR 217[1], and she failed to provide an excuse for the delay or for failing to timely serve.

Student note: Petitioner's pro se status is not a reasonable excuse.

Case: Druyan v. Board of Educ. of the City Sch. Dist. of the City of N.Y., NY Slip Op 04569 (1st Dept. 2015)

Wednesday, June 3, 2015

Practice point: Plaintiff established prima facie entitlement to
judgment as a matter of law by submitting the promissory note, the
corresponding agreement between the parties, and her affidavit asserting
that the defendants failed to pay the loan in accordance with the note's terms.

In opposition, however, defendant presented
sufficient evidence to raise a triable issue of fact as to the
applicability of the defense of usury, and the Appellate Division affirmed denial of the motion.

Student note: To establish prima facie entitlement to judgment as a matter of law
with respect to a promissory note, a plaintiff must show the existence
of a promissory note, executed by the defendant, containing an
unequivocal and unconditional obligation to repay, and the failure by
the defendant to pay in accordance with the note's terms. plaintiff makes such a showing, the burden shifts to defendant to establish by admissible evidence the existence of a triable
issue of fact with respect to a bona fide defense.

Tuesday, June 2, 2015

Practice point: The Appellate Division affirmed the motion court's
denial, finding that defendant failed to demonstrate a potentially
meritorious defense to the action. In support of his motion, defendant
argued that the assignment of the mortgage to the plaintiff did not
comply with the terms of the original lender's pooling service
agreement. However, defendant did not have standing to assert
noncompliance with the agreement. In addition, defendant failed to make a
showing of a misrepresentation or that the plaintiff engaged in fraud
or other misconduct that would warrant vacatur of the judgment of
foreclosure and sale.

Student note: A defendant seeking to vacate a default in answering or appearing upon
the ground of excusable default must demonstrate a reasonable excuse for
the default and a potentially meritorious defense to the action, pursuant to CPLR 5015(A)(1). In
addition, CPLR 5015(a)(3) permits a court to vacate a judgment or order
upon the ground of fraud, misrepresentation, or other misconduct of an
adverse party.

Monday, June 1, 2015

Practice point: Plaintiff-physician, who had treated a workers' compensation claimant,
alleges that he was defamed in his profession by a report prepared by
defendant, a consultant hired by the workers' compensation insurer to
determine whether certain medications and treatment prescribed the
claimant were indicated. Plaintiff alleges that defendant exceeded the
scope of his assigned task by reporting that the medical records he
reviewed indicated possible fraudulent billing and unnecessary treatment
rendered, and recommending that the matter be referred to the Office of
Professional Misconduct and the Attorney General's Office.

The Appellate Division modified the motion court's determination and reinstated the action sounding in libel per se. Defendant's communications are not cloaked with absolute immunity
since there is no showing that he was engaged in a public function when
he published the report, pursuant to Workers' Compensation Law § 20. In addition, there were no adversarial proceedings at the time of the report's publication.

Neither are defendant's communications subject to
qualified immunity, as plaintiff's detailed allegations, accepted as
true for purposes of the motion, are enough to establish actual malice.

Student note: The Appellate Division affirmed dismissal of the claim sounding in intentional
infliction of emotional distress, as defendant's report does go
beyond all possible bounds of decency so as to be regarded as atrocious and intolerable in a civilized community.

John Diekman...

...is a St. Louis native, a Vietnam veteran, a former speech professor, and an attorney who studied law in the evening, matriculating at 50.

Disclaimer

NEW YORK LAW NOTES is published solely as a resource for New York practitioners and students of New York practice. It is not intended to offer legal advice, and it does not offer legal advice.
The exchange of information, by electronic mail or otherwise, relating in any way to NEW YORK LAW NOTES is not intended to create an attorney-client relationship, and it does not create an attorney-client relationship.